IN HIS OWN IMAGE: SHEPARD FAIREY FIGHTS TO REDEFINE COPYRIGHT
LAW

By Alan Behr

NEW YORK, 3 MARCH 2009

I. Don't Fight the Law. It May Simply Change its
Mind.

Even a few years ago, street artists such as Shepard Fairey had
to rely on shameless self-promotion, print media and luck to
make their presence felt. Now they have only to rely on
shameless self-promotion and the Internet; if the latter makes
things go viral, there isn't much more to do than to kick back
and get famous - unless The Associated Press, one of the last
great powers of the print age, threatens to sue. That was the
situation faced by Fairey when, a day before the expiration of
the AP's deadline for him to accept a license and pay damages
for the unauthorized use of a news photograph, the artist
launched a preemptive strike by suing the AP in federal court
in New York City.

Fairey made a number of posters based on the photograph, most
notably Obama Hope, a work of instant political art
that, although not formally endorsed by the Obama campaign,
quickly became the candidate's iconic image. It shows
then-Senator Obama staring upwards in quiet contemplation - a
man with a vision for tomorrow - above a single, evocative
word: hope. Obama Hope is now on view at The Institute of Contemporary Art
in Boston as part of a retrospective of the artist entitled
Shepard Fairey: Supply and Demand. A variation has
joined the permanent collection of the
National Portrait Gallery, in Washington. Another variation
was an inaugural poster that added images of the Capitol and
the White House. For a thirty-eight-year old street artist from
Charleston, South
Carolina whose prior fame existed in good measure on
repeatedly getting arrested for applying graffiti where the law
says it should not be, you can only conclude that going viral
has its advantages.

Mannie Garcia / Shepard Fairey

In his lawsuit, Fairey asks for what is known as a declaratory
judgment: essentially, a statement by the court that he has
done no wrong, owes the AP nothing, and can continue to exploit
his Obama artworks, even if they are based upon an AP
photograph. Fairey's lead attorney is Anthony Falzone, a
lecturer at Stanford Law School and the executive director of
the Fair Use
Project. Stanford's faculty includes Lawrence Lessig - the
copyright bar's closest approximation to a celebrity. Although
perceptions may alter when Lessig leaves Stanford for Harvard
later this year, the Bay Area is commonly seen as the
stronghold of the legal, cultural and political forces seeking
to liberalize the application of copyright law. That includes
Creative Commons - a
nonprofit organization seeking to help creators use the work of
others by encouraging more liberal licensing terms, among other
projects. A thematically related initiative is open source (for
computer code). The legal slang for much of it is the
"copyleft," in contrast to traditional copyright.

II. Copyright is like Real Estate. It's just a Good
Deal More Fun.

Historically, copyright cases have been like real-estate cases
involving art: the battle is about proprietorship and its
consequences. Cases usually center on who owns a piece of
intellectual property or whether and to what extent someone
else has to pay the owner for exploitation, whether authorized
or not. Cases therefore typically run along the lines of author
vs. publisher, musician vs. record label, screenwriter vs.
movie studio and the big one: owner vs. claimed infringer.

Over the preceding decades, until about the middle of the
1990s, American courts had shown an increasing willingness to
expand the protection of intellectual-property rights and even
to find them where they formerly weren't believed to exist. One
result in copyright law was to constrict the doctrine of fair
use, which lets non-owners of a work use portions of it without
having to be accountable to the owner. For example, it was once
commonly accepted, or at least commonly hoped, that, under the
doctrine of fair use, you could use perhaps just a few bars
from a popular song in a movie or a television show without
having to pay the music publisher. These days, if a character
as much as hums a handful of notes from a song, the producers
expect to credit and pay the music publisher.

III. When the Nerds Battled the Lawyers, the Nerds
Won.

Working against that change in the law were advances in
technology. In the early 1980s came the PC, and when the
Internet arrived and linked all that user hardware together, it
quickly became possible, for the first time in history, for the
average person to make and deliver perfect copies of
professional audio and visual content, from three-minute pop
songs to feature films. In the USA, where broadcast television
was always free, the Internet was seen from the beginning as an
electronic medium analogous to broadcast or, at most, cable TV:
pay your monthly access charge, and whatever comes over the
line is fair game. Once news and music became available and
exchangeable through the Internet, the business models of
newspapers and music labels began to crack and splinter.

In the meantime, perhaps as the result of an independent social
trend or, more likely, a consequence in part of that change in
technology, the legal and social dialogue began to move from
how proprietorship should be protected and monetized to whether
property rights should be limited and even whether, in some
cases, they should exist at all. It was only two years ago
that, speaking to a group of non-governmental organizations at
the United Nations, I got my first question from an audience
whether proprietary content should be made available for free
because it represents not the expression of its creator but a
manifestation of communal values and ideals. At the time, I
thought the question charming and naÃ¯ve (and still do), but
that notion continues to gain currency.

When technology gives people a capability they want but the law
says they cannot have (such as downloading recorded music for
free), social norms tend to modify to make that conduct
acceptable. Reach a tipping point, and it is left to the law
either to make it legal or to forget about enforcing, except in
extreme cases, whatever rules make it illegal. Even if
downloading without permission of the copyright holder does not
become legal (and there is no sound reason why it should), for
much of the first generation raised with computers in the home,
it has become a socially accepted wrong. It is not seen as
something that brings shame upon the family (such as Dad's
arrest for tax evasion) but as the kind of self-help only a
governmental nag would criminalize (such as when Mom sneaked
past customs those Gucci scarves she bought to cheer up after
filing for divorce from her tax-cheat husband).

IV. Shepard Fairey: Portrait of the Artist as a
Litigant.

The Copyright Act of the United States, in keeping with the law
of other Western nations, doesn't contain a presumption that
the creator of a work of art necessarily has made something
that deserves copyright protection. Although the courts have
held the standard of creativity is minimal, you still have to
prove you've done something unique to win exclusive rights to
it. In his lawsuit against the AP, Fairey challenges The
Associated Press to do just that. The news service will
therefore have to show that there is something so creative
about its photograph of perhaps the most-photographed man in
recent years as to constitute original expression. In that
regard, the AP will likely have to deal with one embarrassment:
it took several weeks of detective work by
blogger-photographers and some false leads before the image
used by Fairey at the starting point for his poster was
identified.

In his complaint against the AP, Fairey asserts (first on
information and belief, then as raw fact) that the correct
source turned out to be a photograph taken in 2006 at the
National Press Club in Washington by a photographer named
Mannie Garcia while on assignment for the AP. (Another
complication, not yet made a part of the lawsuit, is that
Garcia, who at first was also unaware that he had taken the
picture, has now come forward, claiming that, under the deal he
had in place with the AP at the time, he is the true owner of
the copyright and the photograph, and not the AP.)

On February 26, Lawrence Lessig and Shepard Fairey spoke at The
New York Public Library (along with the author Steven Johnson).
To drive home the point about the difficulty in finding unique
creative elements in the Garcia photograph, Lessig populated a
screen with similar photographs of President Obama taken by
others; each time a new photograph came up, he playfully asked
Fairey if he had finally hit upon the right one.

Assuming ownership of copyright-protectable creativity can be
established in the Garcia photograph (and it very likely can),
the operative question will likely shift to one of fair use,
which is where Anthony Falzone's expertise will come in handy.
Of particular interest to copyright lawyers is the question of
whether Fairey can show that his use of the photograph was fair
use because his work was "transformative" - meaning that it so
altered the purpose or character of the photograph that it
represents new expression, bears new meaning or carries a new
message.

In his complaint (in which his company, Obey Giant
Art, Inc. is a co-plaintiff), Fairey sets out the artistic
interpretation he made of the Garcia photograph, pointing to
his use of abstraction. He notes as well that his intention was
to transform the effect of the image from document to a graphic
metaphor in order "to inspire, convince and convey the power of
Obama's ideals, as well as his potential as a leaderâ€¦" He
claims to have made the original poster as act of political
conviction and to have financed production from sales at modest
prices.

Fairey now insists that the photograph he used was one that
included both the senator and the actor George Clooney. That
help would support his assertion that his alterations
substantially transform the original and that what he did was
fair use - because voluntarily cutting George Clooney, of all
people, out of an image should indeed be a considerable
alteration of what it was intended to convey.

The Internet, that vehicle that so aids Fairey in his work, is
also the tool by which James Danziger has been able to get out
his latest message: that the Mannie Garcia photograph that
Fairey used was not the one that included George Clooney.
Instead, reported Danziger in his blog, the source was a
tightly composed Mannie Garcia portrait of Barack Obama taken
at the same 2006 event, as
demonstrated in a digital overlay of that photograph with the
Fairey artwork: http://pictureyear.blogspot.com/
2009/02/frankenstory.html. The original overlay is
credited to, and rather ironically bears the copyright notice
of, a graphic artist named Steve Simula.

The version of the Mannie Garcia photograph that includes
George Clooney shows the future president attentive to what an
off-camera speaker is saying. The Garcia portrait of Barack
Obama, in contrast, captures fully that inspiring look that has
become so familiar from the Fairey posters. Danziger is right
that the overlay appears to demonstrate that Fairey did what
grammar school teachers say you can do if you want to copy a
work but never if you want to claim it as your own: he traced
it (perhaps electronically). Art still is best consumed live.
In an exhibition that closed at his New York gallery,
Danziger Projects, two days after Fairey spoke with Lessig,
Danziger had the Garcia portrait hanging perpendicular to
versions of the Fairey poster -and the resemblance was plain to
see.

Danziger has so wearied from his association with Shepard
Fairey and the controversy, he calls the whole episode
"Frankenstory." Although Danziger believes that Fairey's
versions are transformative fair use despite his reliance on a
much closer source image than Fairey alleges in his lawsuit
against the AP, he also believes that Garcia got shortchanged
by a lack of attribution and that Fairey has made a good deal
more money from the whole business than he has publicly
admitted receiving. "I am still a fan of Shepard Fairey's
work," remarked Danziger at this gallery on the last day of his
exhibition featuring the artist, "but I am no longer a fan of
him as a person."

V. Consequences

Statistically, the fair-use factor that has proven most
consequential in determining if there has been fair use, as
provided in the Copyright Act, is "the effect of the use upon
the potential market for or value of the copyrighted work." As
Fairey pointed out in his library talk, the Mannie Garcia
photograph is actually worth more than it ever would have been,
thanks entirely to Shepard Fairey. Danziger agrees; his
gallery's signed exhibition print carried a price of $1,200
solely because of what Fairey had done.

The Associated Press will attempt to prove that the posters,
despite Fairey's alterations, do not merely "reference" the
Garcia photograph, as Fairey insists. To show they are actually
infringing copies of the photograph, The Associated Press will
point to the similarities and may include an attempt to
demonstrate that Fairey's method involved more tracing or
scanning than inspiration and alteration. In short, the AP
will likely seek to show that the posters didn't transform the
photograph in a meaningful way but copied it and appropriated a
market for it - the infringer's version of a free ride, both
artistically and financially.

Those of us who work to protect the increasingly embattled
rights of people who rely upon their creativity to earn a
living have to wonder if The Associated Press has overplayed
its hand, thereby causing trouble for us all, at least from a
public-relations and potentially from a legal point of view as
well. As Fairey observed in during his presentation, when, for
a time, Reuters thought one of its photographers had taken the
photograph, it said it was honored that Fairey had selected it.
Should the AP lose and a decision against it get on the books,
that precedent will likely act as a new barrier over which
others seeking to enforce more substantial copyright claims
will be obliged to climb.

At a time in history when, legally or not, everybody can pretty
much make, possess and transmit content in a way that was once
the exclusive preserve of media companies and government, the
law may simply be acknowledging what the bottom line of what so
many of those media companies and the personal finances of some
of the authors, photographers and other artists has already
proven: once you release your intellectual property to a newly
liberated public, the once-rewarding task of getting it to send
money back to you has become the great frustration of the
creative community.

Alan Behr practices intellectual-property law at the
New York office of Alston & Bird LLP. This article is based
in part on material he presented while speaking recently on
media and entertainment law at Columbia Business School and the
University of Pennsylvania Law School. Mr.
Behr commented previously on The
Art of Barck Obamafor
Culturekiosque.com

Title image: Shepard Fairey
Photo courtesy of The Institute of Contemporary Art, Boston